Date: 20090226
Docket: IMM-2857-08
Citation:
2009 FC 202
Toronto,
Ontario, February 26, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
RAHMAT
KHALIQI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Rahmat Khaliqi (the “Applicant”) seeks judicial review of the decision of the
Immigration and Refugee Board, Refugee Protection Division (the “Board”). In
that decision dated June 2, 2008, the Board rejected the Applicant’s
application to be found a Convention refugee or a person in need of protection.
[2]
The
Applicant is a 26 year old citizen of Afghanistan. He was born into an
Islamic family, but said that he became disillusioned with Islam because it
advocates the killing of non-believers in the name of religion.
[3]
The
Applicant alleged that he began to study Christianity while still living in Afghanistan, mainly at
the house of a friend. In August 2000, he learned that a group of Taliban
leaders told his father that he had converted to Christianity. The penalty for
conversion would be death. The Applicant left his father’s home. He later
learned that his father and his studying companion, had been killed by the
Taliban.
[4]
In
August 2000, the Applicant fled to Pakistan with his mother and his
sister. He said that Pakistan was not a safe place
for converts to Christianity nor for those who assist them.
[5]
The
Applicant stayed in Pakistan until November 21, 2006 when he left for Canada. Upon
arrival, he claimed refugee status immediately.
[6]
The
Board found that the Applicant’s conversion was one of convenience. It made
negative credibility findings, following an assessment of the Applicant’s
evidence about his knowledge and practice of the Mormon faith, the denomination
of Christianity adopted by the Applicant after his arrival in Canada. The Board
found that if returned to Afghanistan the Applicant would
not pursue Christianity in such a way that would signal to others that he was a
convert to Christianity and thereby at risk of persecution, torture, risk to
life or of cruel and unusual treatment or punishment, pursuant to section 96
and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”).
[7]
The
Applicant argues that the Board committed a reviewable error by making
erroneous findings of fact without regard to the evidence and if these errors
had not been made, the Board may have reached a different conclusion. In
particular, the Applicant challenges the manner in which the Board assessed his
knowledge of the Christian denomination of Catholicism, his participation in
the Mormon faith and knowledge of its practice, and his pursuit of Christian
activities in Pakistan.
[8]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
Board’s findings were reasonably open to it and that there is no basis for
judicial intervention.
[9]
The
Board’s decision is subject to review on the standard of reasonableness; see Bielecki
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 442.
[10]
Upon
reviewing the material in the Certified Tribunal Record, including the
transcript of the Applicant’s oral evidence before the Board, I am satisfied
that the Board indeed drew reasonable conclusions. The Applicant did not
demonstrate more than a superficial knowledge of the history of Christianity or
indeed of the history and practice of the Mormon faith.
[11]
Contrary
to the submissions advanced by the Applicant during the hearing of this
application for judicial review, the Board did not engage in assessing the
strengths of his religious convictions as discussed by the Supreme Court of
Canada in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551.
[12]
In
the result, I find no basis for judicial intervention and this application for
judicial review is dismissed.
[13]
Counsel
for the Applicant proposed the following questions for certification:
Whether the Board has jurisdiction, in
assessing the credibility of a claimant’s stated religious belief, to probe or
examine and test those beliefs against a pre-set religious orthodoxy of that
religion chosen by the Board member, or does the Supreme Court of Canada ruling
in Syndicat Northcrest fully apply to Refugee Protection Division
hearings on this issue.
[14]
Counsel
for the Respondent opposes certification of these questions, or either of them,
on the basis that they will not be dispositive of this application for
judicial review. Further, he argues that these questions do not arise on the
facts of this case.
[15]
I
agree with the arguments of the Respondent. Subsection 74(d) of the Act
provides as follows:
|
d)
an appeal to the Federal Court of Appeal may be made only if, in rendering
judgment, the judge certifies that a serious question of general importance
is involved and states the question.
|
d) le jugement consécutif au contrôle
judiciaire n’est susceptible d’appel en Cour d’appel fédérale que si le juge
certifie que l’affaire soulève une question grave de portée générale et
énonce celle-ci.
|
[16]
According
to the decision in Zagai v. Canada (Minister of
Citizenship and Immigration) , 36 Imm. L.R. (3d) 167, the
threshold for certifying a question, which allows for an appeal to the Federal
Court of Appeal, is whether there is a serious question of general importance
that would be dispositive of an appeal. This requires that the “serious
question” is one that has been raised and addressed in the decision below. That
is not the situation here and no question will be certified.
[17]
The
application for judicial review is dismissed and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed and no question will be certified.
“E. Heneghan”
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